Judge: Theodore R. Howard, Case: 20-1175910, Date: 2022-09-29 Tentative Ruling
Plaintiffs George Stevens and Fatima Stevens’ (“Plaintiffs”) Motion to Compel Deposition of Defendant General Motors, LLC’s (“Defendant”) Person Most Qualified (“PMQ”) on all categories identified in Plaintiff’s Second Amended Notice of Deposition (the “Notice”) is GRANTED in part.
As a preliminary matter, the Court notes that the document requests in the Notice are not at issue here. (See Reply 2:6-8.) This Motion is thus limited to the PMQ categories of examination alone.
The moving papers demonstrate that the Notice was served on Defendant on 03/17/22 and the deposition was noticed for 04/01/22. (Exhibit 5 to the Declaration of Vanessa J. Oliva (“Oliva Decl.”). The Notice contained 19 categories of examination. (Id.) In Defendant’s Opposition, it states that it has agreed to produce a witness as to Category Nos. 1-4, 7 and 10.
Plaintiffs incorrectly argue that because Defendant failed to designate and produce a PMQ for deposition, such a response is tantamount to providing no response to the requested discovery at all, and thus a separate statement is not necessary pursuant to Rule 3.1345(b). This argument lacks merit. First, Plaintiffs cite no authority to support their contention that failing to designate and produce a PMQ is tantamount to no response at all such that a separate statement would not be required. Second, Defendant did respond to the Notice. Defendant provided a timely written response that asserted various objections to certain categories of examination and that indicated that Defendant would produce a witness as to other categories. (Ex. 6 to Oliva Decl.)
The Motion asks the Court to compel Defendant to provide a PMQ for each of 19 stated categories, where Defendant asserted varying objections and responses to each. (See Id.) Under C.R.C. 3.1345(a), a Separate Statement is required for “any motion involving the content of a discovery request or the responses to such a request.” Here, the Court is effectively being asked to consider the objections for each of those categories and rule on them. As a result, the Court finds a separate statement was required for this Motion, to the extent it asks the Court to compel a PMQ deposition for the categories still in dispute, i.e., Category nos. 5, 6, 8, 9 and 11-19.
Further, the Motion does not show that any attempts were made to discuss Defendant’s objections prior to the filing of the Motion. All that the Motion shows is that Plaintiffs’ counsel asked Defendant (on several occasions) for available deposition dates for its witness. (Oliva Decl. ¶¶ 18-20, 24 and Ex. 4 thereto.) Plaintiffs claim that Defendant did not respond to its inquiries for available dates and thus that Plaintiffs “met and conferred to the best of their ability.” No “meet and confer” is required where the deponent “fails to attend the deposition and produce the documents … described in the deposition notice.” In such cases, all that is required is a declaration by the moving party that he or she contacted the deponent “to inquire about the nonappearance.” (Rutter CPBT §8:813, citing C.C.P. § 2025.450(b)(2).) However, implicit in the requirement that counsel contact the deponent to “inquire” about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue. (Id. at §8:813.2, citing Leko v. Cornerstone Building Inspection Service, (2001) 86 Cal.App.4th 1109, 1124.)
Given Defendant’s objections and refusal to produce a witness on certain categories, Plaintiffs should have attempted to meet and confer regarding the objections to those specific categories. Here, it appears that Plaintiffs made no effort whatsoever to do so. Thus, Plaintiffs failed to engage in good faith meet and confer efforts regarding Category nos. 5, 6, 8, 9 and 11-19.
Accordingly, the Motion as to Category Nos. 5, 6, 8, 9, and 11-19 is DENIED. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)
For Categories 1-4, 7 and 10, Defendant’s responses indicated that Defendant agreed to provide a witness “at a mutually agreeable time and place.” (Id.) Plaintiffs assert that no dates were then offered, despite several requests. (Oliva Decl. ¶¶ 18-20, 24 and Ex. 4 thereto.) As to those categories, the Motion is thus effectively seeking compliance, rather than a ruling on the objections, while the Opposition asserts that Defendant was and is willing to produce a PMQ for those categories. The Motion is therefore GRANTED to the extent it seeks to compel Defendant to produce a PMQ for Categories 1-4, 7 and 10.
Counsel are to promptly meet and confer to identify dates for said deposition, with such deposition to be taken by video conference on a date within the next 20 days.
Counsel for Plaintiffs to give notice.